European DPAs Issue First GDPR Guidance

On Friday, the Article 29 Working Party issued official guidance relating to the General Data Protection Regulation, or GDPR (which we’ve covered in previous posts here and here). The Article 29 Working Party is comprised of representatives of the various EU Member States’ data protection authorities (DPAs), so this marks the first time that the DPAs have revealed their thoughts on how they plan to interpret and enforce specific GDPR provisions. This is welcome news for companies that, until this point, have been left to figure out compliance strategies without any indication as to how some of the newer concepts the GDPR introduces will operate in practice when the Regulation begins to apply in 2018.

For many companies, the GDPR’s provisions relating to data portability present some of the biggest hurdles to achieving compliance by the time the GDPR begins to apply in May 2018. Article 20 of the GDPR states that a data subject has the right to receive the personal data that he or she has provided to a controller “in a structured, commonly used and machine-readable format,” and to transmit that data to another controller (for example, a different service provider). It goes on to clarify that this provision applies in situations where the controller’s basis for processing the data subject’s personal data is based on the data subject’s consent or on a contract to which the data subject is a party, and if the processing is carried out by automated means. Article 12(3) requires that controllers provide the requested information to the data subject without undue delay, but otherwise within one month of the receipt of the request (or three months for complex cases, in which case the data subject should be notified of the reasons for the delay).

While the Directive currently provides data subjects with a right of access to their data, Article 20’s data portability right is different – and potentially more onerous for controllers. The provision is meant to give data subjects more control over their personal data, but for many companies, developing the capabilities to provide individuals with GDPR-compliant data transfers may take a significant amount of effort and resources over the next year and a half. For example, a company may have to assess where it stores customer data (and it may not all be in one place), evaluate what type of data it has collected, and implement a system that can generate the required transfers for those individuals that request them.

Unfortunately, this new guidance does not provide much peace of mind for data controllers, as it illustrates the considerable breadth of data the regulators consider to be subject to this provision. Some notable points are broken down below.

How Portable Data Should Be Provided to Users

The guidelines recognize the many types of data that data subjects may request, and therefore clarify that there is no one appropriate format for providing this data, as long as it is “interoperable” for ease of sharing with other controllers.

Types of Processing Operations that Fall Under the Scope of Data Portability

The guidelines re-emphasize the point that only data processed by automated means is subject to the data portability provision, and that paper files therefore are outside the scope of data portability.

The guidelines provide two examples of the types of data typically collected pursuant to a contract with a data subject: information subject to the data portability requirement includes titles of books published from an online bookstore, or songs listened to via a music streaming service. These examples provide a reminder of the wide scope of the definition of “personal data,” and give insight into the considerable range of transactions that regulators could consider to arise out of a controller’s contract with a data subject.

Data “Provided By” a Data Subject

The data portability right applies only to personal data “provided by” a data subject. However, this includes data beyond that knowingly provided by a data subject, such as name and address. A data subject may be considered to have “provided” data that was generated as a result of the individual’s use of a service or device. Examples include search history, location data, and browsing behavior.

Data Retention and Erasure

Data portability does not affect data retention. In other words, a company does not have to retain personal information just in case a data subject chooses to exercise his or her data portability right. Likewise, a data subject’s data portability request is not, alone, to be taken as a request to delete that individual’s personal data. Retention requirements with regard to personal information apply in parallel to portability requirements.

Rights of Third Parties

Some of the data that must be transmitted to a data subject who has made a data portability request will contain the personal information of third parties. The “new” controller (i.e. the entity to which the data subject transmits the data) must respect the privacy rights of these third parties. For example, if a webmail provider transmits the data subject’s email contact directory to the data subject, and that individual then transfers the directory to a new provider, the new provider cannot then use the third parties’ data for a purpose other than that for which it was originally collected. It cannot use the email addresses included in the directory to send its own marketing emails, for example. The guidelines recommend that controllers implement tools that will allow data subjects to exclude third party data from their portability request, and/or tools allowing third parties to consent to the transfer of their personal data.

Informing Data Subjects

Controllers must notify data subjects about the new right to data portability, and must “distinguish” this right from other rights. The Article 29 Working Party recommends that controllers make clear to data subjects what data they may request and receive when exercising their data portability right – a suggestion that may be hard to implement without an even fuller list of examples of the types of data subject to this requirement.

Guidelines for Identifying a Controller or Processor’s Lead Supervisory Authority

This set of guidelines is especially helpful for those companies that carry out “cross-border processing of personal data,” which GDPR Article 4(23) defines as processing that takes place when a controller or processor has establishments in multiple Member States, or where the controller or processor is established in a single Member State but the processing “substantially affects or is likely to substantially affect” data subjects in multiple Member States. In these situations, the GDPR allows controllers and processors to designate a single local authority to act as the “lead supervisory authority” charged with overseeing their operations from a data protection perspective. This has become known as the “one stop shop” approach. The GDPR’s provisions relating to “lead supervisory authorities” are meant to simplify and streamline privacy regulation, as under the Directive a company operating in multiple Member States may be subject to multiple DPAs.

This set of guidelines recognizes that the designation of a lead supervisory authority necessarily is a very fact-specific inquiry. Although it provides some generalized advice, it also includes illustrative examples and factors for companies to consider in making the determination for themselves. To that end, the guidelines also include an annex meant to guide companies going through the designation process. Some of the more general points are described below.

Identifying the Lead Supervisory Authority

For controllers, the GDPR provides that the lead supervisory authority should be the authority in the Member State in which the controller has its “main establishment” – in other words, the place where the controller has its “central administration” and makes “decisions on the purposes and means of the processing.” The guidelines acknowledge that a controller could have multiple decision-making centers, and provide several detailed examples as to how to determine which center is the “main establishment.”

Companies Not Established in the EU

If a company does not have any establishment in the EU, it cannot take advantage of the one-stop shop system and must deal with the supervisory authorities in each Member State in which it operates. Simply having a single representative in one Member State does not mean that person can serve as a “main establishment” for one-stop shop purposes. This may prove to be an especially large headache for small companies that reach out to consumers in multiple EU Member States but do not have the resources to create any EU establishments (i.e. some smaller app companies and start-ups), as they will have to expend the time and resources to tailor their compliance practices to each Member States.

Guidelines on Data Protection Officers (“DPOs”)

Article 37 of the GDPR requires public bodies, as well as controllers or processors whose “core activities” involve (1) processing “special categories of data” (often referred to as “sensitive data”) on a “large scale” or (2) regularly and systematically monitoring individuals, to appoint a data protection officer (DPO). The DPO is tasked with advising the company as to proper practices for GDPR compliance, among other responsibilities. This new requirement has attracted a lot of attention, not only because it requires many companies to designate a DPO for the first time, but because the GDPR appears to provide a fairly high degree of job security for DPOs, as Article 38(3) forbids companies from dismissing or penalizing a DPO for performing his or her responsibilities.

The guidelines make clear that the DPO requirement will apply to many companies. Key points include the following:

Definition of “Core Activity”

Although the guidelines’ definition of “core activity” – those activities that “can be considered as the key operations necessary to achieve the controller’s or processor’s goals” – is not very enlightening in and of itself, the document does provide some helpful examples of what “core activity” does not include. For example, the guidelines acknowledge that IT support and employee compensation are activities common to almost all organizations, and even though they are essential, they generally may be considered “ancillary functions” rather than a company’s “core activity.”

Definition of “Large Scale” Processing of Sensitive Data

As defined in the GDPR, special categories of personal data (referred to here and many other places as “sensitive data”) consists of “personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation.” The guidelines essentially punt on what constitutes “large scale” processing of sensitive data, stating that a “standard practice” for what may be considered “large scale” may develop over time and that companies should consider a number of factors in making the determination for themselves in the meantime. The guidelines do provide a few fairly obvious examples of “large scale” sensitive data processing, such as a hospital’s processing of patient data, as well as a few examples of non-“large scale” processing, such as an individual lawyer’s processing of criminal convictions.

Definition of “Regular and Systematic Monitoring”

The guidelines explicitly state that “all forms of profiling and tracking on the internet, including for purposes of behavioral advertising,” are considered types of “regular and systematic monitoring,” thereby indicating that behavioral advertising agencies should designate a DPO. Although the guidelines do not state so explicitly, a company that drops cookies might also be viewed as engaging in a form of “profiling and tracking on the internet.” Taken to its extreme, this could include the use of a cookie as benign as a log-in cookie triggering the requirement for a company to have a DPO. We hope to receive additional guidance from the DPAs as to what kinds of Internet “tracking” give rise to this requirement.

DPO Qualifications and Job Description

The more sensitive, complex, and substantial an organization’s data processing is, the more qualified a DPO must be. The guidelines state that a DPO must have a level of expertise “commensurate with the sensitivity, complexity, and amount of data an organization processes.”

All DPOs should possess “an in-depth understanding of the GDPR” – so companies planning on designating a current employee as the DPO must ensure that person is up to speed come May 2018.

A DPO need not always be an individual, as the guidelines clarify that a team can function as a DPO, provided that a single person serves as the lead contact and tasks are clearly allocated to the different team members. Likewise, a DPO does not even need to be a company employee or team of employees, as a company may contract out the DPO’s responsibilities to an outside service provider.

An organization must always consider the DPO’s position and, if it disagrees with the DPO, it should document its reasons for not following the DPO’s advice. The guidelines emphasize that a DPO cannot be terminated or otherwise penalized (i.e. via denial of promotion) for providing advice within the scope of his or her responsibilities with which the organization does not agree.

With approximately a year and a half to go until the GDPR begins to apply, additional regulatory guidance is expected. Check back here for analysis of forthcoming guidance and other GDPR developments as they become available.

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